PRACTICING LAW THE JOHNNIE L. COCHRAN, JR. WAY
Lessons Learned over 20 years Practicing Law with Johnnie L. Cochran, Jr.
I had the great honor of beginning my legal career practicing law with Johnnie L. Cochran, Jr. Fourteen years ago, he left this world far better than he found it. In 2004, after twenty years of practicing law together, and when he was very ill, he asked me to give a speech at the first Cochran Firm national seminar. He told me I could pick any topic. I reflected on our long relationship and after rejecting ideas about trial technique it occurred to me that I should talk about something deeper and more connected to my core experience with my legal mentor and friend. The following is that speech, abridged. I hope you will find something useful in my words describing some of what I witnessed and learned in my years with Johnnie on our journey towards justice.
“Good morning everyone. I want to do something for you. It is perhaps a little different than what you are used to at a legal seminar. I think you will understand what it means in a moment.
(Eric plays Bangidza on Mbira) https://soundcloud.com/ciregreg1/bangidza
This instrument is called an Mbira Dzadvazimu.[1] The song I played is called Bangidza and it is over a 1000 years old. It comes from the Shona people of Zimbabwe. The title of the song means to show, indicate or point out.[2] This music is used to call on ancestral spirits and to heal. My goal today is to show, indicate or point out to you how Johnnie Cochran demonstrated to me that law is a healing profession.
I want to talk to you about who you are. You think you are attorneys but that is only a convenient label. That is not who you are. You are healers. You see those two letters behind your name, J.D. That means you are a Juris Doctor. But that doesn’t make you a doctor of law. It makes you a doctor with law. You have a special power. You have the power to administer a judicial remedy to the sick, to victims of injustice. You are all heart surgeons and you operate on the heart of America. You cut out all the blackness, and disease of injustice and racism in America. You have a scalpel called the intellect. You have a manual called the Constitution. You have an operating room called the courts of America to do your great work. But if you become a victim of complacency, a victim of your material success, then you have failed. It is as if you were performing open heart surgery with your hands tied behind your back. What happens when you do that? The heart dies. The body dies. America dies. Because without your healing powers, without you speaking out for those who cannot speak for themselves, our democracy dies. Our democracy is built on the pillars of justice. And you are the protectors of those pillars. This is what we do as lawyers if we are to walk in the footsteps of Johnnie L. Cochran, Jr.
I will not be talking to you very much about technique. Although technique is necessary, I believe that we lawyers are victims of spending far too much time in our head and not enough time dealing with matters of the heart. So I think there is a need for us to focus on why we do what we do as much as how we do what we do.
I have had the unique opportunity to practice law with Johnnie for my entire legal career. It has been an amazing blessing and a minor curse. This is because initially it was difficult to learn from someone you were continually in awe of and difficult to meet the high standard of practice he demonstrated. But awe is an interesting thing. It stops you, it alters your consciousness, makes you believe that the way you previously saw things was wrong, that what you thought was impossible may not be. For me, over time this awe was transformed into understanding.
That understanding tells me this. The most important thing for you to know today is that the thing that makes Johnnie so great exists in every one of you. And although none of us can be Johnnie Cochran, we can be great lawyers if we are true to ourselves and we find and use our own authentic voices. So I want to talk about Johnnie’s approach to practicing law as a healing profession.
Consider with me now for a moment what a healer does. Sometimes he cuts out the offending element. Sometimes he treats symptoms. Always he considers systemic change to avoid a recurrence of the insult to the body. When your inner orientation is that of a healer a whole set of additional considerations and tools become important and available to you. Your job is not done when you get a large verdict. That is only cutting out the offending element. You realize that your client’s tragedy is usually not an aberration but symptomatic of a deeper ill, sometimes one that infects all of society. And so, to bring about real lasting healing, you go deeper. In your discovery you are seeking to answer not only the question of what happened but also why did it happen, has it happened before, how could it have been avoided, what must be done so that this tragedy never occurs again. And so you seek to bring about systemic change. And so the three things Johnnie tries to do in every case is first provide compensation for our client. Second, raise public awareness of an infection in our social system. And third, endeavor to bring about systemic change.
Johnnie is always fond of quoting from Luke: to whom much has been given, much is expected. He believes that ambition and idealism are not mutually exclusive; that you can prosper and make a difference in the world in which you live. You can, indeed you must, do good as you do well.
In his book, Journey to Justice, Johnnie describes what it means to represent a client. He states: “Being a lawyer means not only sharing the pain of other people’s suffering but also accepting the burden of their trust. In the final moment, being a lawyer isn’t about winning or losing, it’s about keeping faith.”[3] I’ve seen those words come to life in the person of Johnnie Cochran in every case. I’ve seen how he will go to our client’s son’s gravesite. Her son died during an illegal football practice sponsored by Northwestern University where he collapsed and school personnel did not get him immediate medical attention. I’ve seen him hold her hand and console her, not to get the case or keep the case but to keep the faith of this wonderful lady, to keep her trust.
I’ve seen him spend 26 years of his life to get Geronimo Pratt out of jail for a murder he didn’t commit. I’ve seen him do Jordan like feats in the court room arguing when he was sick and exhausted, giving one of the finest closing arguments I’ve ever heard, only to improve upon it in the next trial. I remember sitting with him early in the mid 80s. He was trying a criminal case and the jury acquitted his client. His client’s gratitude was profuse. He told me, “Eric, win or lose, never let it be said you did not give 100% to the cause.”
When I have emulated Johnnie I too have seen the rewards. They aren’t what you might think. My first experience of this was when I was trying a case for my client Ronald Kennedy. Ron had suffered the loss of his mother from natural causes. She was everything to him. He had no father, so she was a mother and father and friend. All he wanted to do was to make sure that her burial honored who she was in life. He diligently made all the arrangements only to discover the day of the burial that the cemetery hadn’t dug the hole big enough and it didn’t have the right size liner for the casket. The burial couldn’t take place that day and the only place the cemetery could store her casket was in a shed because the mortuary wouldn’t take her body back. The next day Ron and his family came back to proceed with the burial, and while removing the casket from the shed Ron noticed that an ant came out of the casket, and then another ant, and then another ant. And Ron said, “if I see another ant come out of that casket I will open that casket.” Ron saw another ant. He opened the casket. He saw ants coming out of his mother’s mouth and nose and he screamed and he fell to the ground believing that he had let his mom down. But I knew he hadn’t. I knew that he had a right to expect a respectful burial.
At the trial I gave the opening statement with all the drama and passion I could muster while staying within the rules. When I came out of the courtroom Ron came up and hugged me saying, “I love you man.” He hadn’t received a dime yet, but he loved me because I was up there talking for him, fighting for him. That was the healing that Ron needed, more than the money. When someone is harmed by the conduct of another, when they have to endure your opponent’s minimizing or denying their loss, they need a restoration, a restoration of their dignity. The process of justice must always take this into consideration and not assume that the exchange of money is enough. After the closing argument Ron came up to me again, gave me another hug and profuse thanks. We restored his dignity. I also won the case.
Yesterday, Brown Greene talked about where we get our values from and how that informs the rest of our life. Well when I was 15 years old growing up in St. Albans, Queens, I saw something that stayed with me. I was on my bike and I saw this boy. He looked like me. And he was being beaten by the police. I didn’t know what for. He wasn’t resisting. He was small, like me and the officers were huge, hoovering over him and hitting him. I yelled but there was nothing I could do. They threw him in the car and drove away. I was shaken. I got on my bike and rode as fast as I could away from there. I rode all the way to the Whitestone Bridge connecting Queens and the Bronx. I rode on that bridge to the Bronx, not really knowing why, even though the bridge didn’t have a bike path and a swift breeze could have knocked me over into the water over a hundred feet below. I didn’t care. I didn’t care about anything. It was 1971. I remember that year. It was the year that Marvin Gaye’s song, “What’s Going On,” came out. That year and for a long time after, I continued to ask that question, “What’s Going On?”
When I met Johnnie, not only did I learn that I could ask that question, but also that I had the power to compel an answer. Today I can do something that this 15-year-old boy could not do. I can present facts to a judge and jury and ask,“What’s Going On?” I can ask a jury made up of twelve people from a cross section of the community, to answer that question and to do something about it. We all can because at a time in our community when police misconduct went unchallenged, Johnnie asked, “is this justice,” and juries told him, “no this is not justice,” and they did something about it.
The first police misconduct case I ever worked on was Mincey v. City of Los Angeles. Johnnie told me he wanted me to work on this wrongful death case with him and “the great Mike Mitchell.” He always referred to Mike as “the great.” Johnnie took me over to Mike’s office in Canoga Park. I walk into this office with all this dark wood installed on the walls as if it was a judge’s chambers. Cigarette smoke is rising from a tray on the desk while Mike holds a glass of scotch in his hand. A plaque on the wall has his diploma from the University of Transylvania. Another has his degree from Harvard Law School. A green light emanating from a computer screen illuminates Mike’s face. This was circa 1985 or 1986. Mike was the first attorney I knew who used a computer for his law practice. He showed me how he used Westlaw and told me I would never have to go to a stuffy law library again. He was my hero. From that point on I was hooked on using computer technology in the practice of law.
James Thomas Mincey, Jr. was a young black man who the LAPD officers attempted to stop for a cracked windshield. Just minutes before James had been cited for the same violation by other LAPD officers. The police chased him catching up to him on his front lawn. During the arrest they choked James into unconsciousness using the deadly carotid choke hold. James went into a coma and died two weeks later. Johnnie and Mike sought to stop the use of this deadly force technique which was applied disproportionately to African American arrestees. Our racist chief of police, Daryl Gates, said there must be something anatomically wrong with black people causing them to die from the application of this deadly use of force. He said, “We may be finding that in some blacks when it is applied, the veins or arteries do not open up as fast as they do on normal people.”
Johnnie and Mike ultimately settled the case while forcing the City to declare a moratorium on this technique and have it re-characterized by the LAPD as deadly force only to be used in limited circumstances. They followed that model. They provided compensation to the Mincey family, spotlighted a deadly police procedure and caused a structural change reducing the chances of recurrence.
In another wrongful death case we tried, Robinson v. City and County of Los Angeles, we put a spotlight on the infamous hogtying technique used on some arrestees. In this case our client died from a broken neck during restraint procedures. At trial defense counsel tried to show that hogtying a human being was an acceptable police technique. He attempted to show this by allowing a Sheriff’s deputy to hogtie him on counsel table while he faced the jury. Picture this. A 50 year-old attorney with his jacket off is laying prone on counsel table while one of the arresting officers hooks his handcuffed wrists to his bound feet bowing his body in an unnatural position. He is turning beet red during the procedure. Johnnie and I are thinking he is going to have a heart attack right there in the courtroom at any moment. Then, as the hogtied attorney looks into the eyes of the jurors, he utters these fateful, understated, but truthful words, “this is really uncomfortable.” We prevailed and like so many other cases, we provided compensation for the victim’s family, we put a social spotlight on an inhumane police practice, and we caused a structural change by creating a record of the deadly consequences of such techniques.
Johnnie was always fond of saying that the three keys to success are preparation, preparation, and preparation. He said you do this so your opponent will experience another “P”, perspiration. What he meant is that the unrelenting search for truth by a prepared attorney, armed with a thorough understanding of the facts and applicable law, often causes one’s opponent to act out of fear and desperation rather than logic and reason. This can result in your opponent making unwise strategic decisions at trial like trying on gloves that don’t fit, or allowing themselves to be hogtied on counsel table while saying, “this is really uncomfortable.”
We showed the healing power of the law again in a case we tried in the early 90s, Diaz v. City of Los Angeles, representing a young girl and her family against the LAPD. She was 13 years old when an off duty LAPD officer sexually molested her. He stalked her after school finding out where she lived, came to her house at 1:00 am, demanded that her non-English-speaking parents let him enter and he proceeded to the back of their house where he molested her in her own bedroom. As he left, he put his hand on his gun and he told her not to tell anyone saying he would be back. One month later he was true to his word. He came back. Our client was alone at home when he knocked on the door, but she was quick to run out of the house to a neighbor’s and call the police who arrested him on site. A jury convicted the officer who only spent 11 months in jail. We sued him and the City of LA.
This officer was rejected by 3 law enforcement agencies before being hired by the LAPD. Indeed, one of the rejecting agencies was the LAPD itself. As incredible as it sounds, we discovered that this man applied to be an LAPD officer twice and was rejected the first time. He applied to two other police agencies who rejected him. Then he applied a second time to the LAPD and it hired him. When he was first rejected by the LAPD his training officers wrote in their notes that if the department hired him, he would subject the city to civil and criminal liability. Ten years later he did exactly that. The jury awarded $9.4 million to our client. But there was something far more important to me about this case then the monetary recovery.
Mid-way through the case my client and her family relocated from LA to a town north of Bakersfield, California. As trial approached, I drove up from LA to prepare her for trial. As I talked to my young client she described to me how she was hallucinating seeing the face of her assailant on the walls of her bedroom and even in books she tried to read. She was depressed and she was having nightmares. She had tried to commit suicide three times and had the scars on her wrist to prove it. Her parents thought if they got her out of the city, she would heal, she would not be afraid anymore. They didn’t understand what this officer had done to her. She had Post Traumatic Stress Disorder.
I knew she needed to see a doctor immediately. But we were 20 miles north of Bakersfield and my clients didn’t know any psychologist and didn’t think one was necessary. I called some of my friends receiving a referral for a good psychologist, Dr. Dean Haddock. I drove her to his office in Bakersfield. When she came out of his office after that first session I could see she was a little better. She was smiling. I brought her home and sat down with her parents obtaining their commitment to continue to see Dr. Haddock. About a week later Dr. Haddock called me. He thanked me for caring. He said most attorneys he knows don’t care enough. He gave me the greatest compliment that anyone could give me saying,“you saved her life.” My client is well now having received the treatment she needed. She doesn’t hallucinate. She doesn’t have nightmares. She is married with a family living in a beautiful home in northern California. So you can talk about a $9.4 million record setting verdict. I would rather talk about saving peoples’ lives. This is what Johnnie Cochran taught me to do.
Johnnie made it clear early in my career that justice was not a goal but a process. Justice has to be reaffirmed daily in the courtrooms of this great country. He said if we are not moving forward on the road to justice we are moving backwards. If we ever become the victim of complacency, satisfied with our material success, then we have failed and we are not practicing law the Johnnie Cochran way. If we have ambition and achieve great wealth, but are not pursuing greater ideals, then we are not practicing law the Johnnie Cochran way. If we think all the pain of injustice has gone away and no more judicial healing is needed, then we are not practicing law the Johnnie Cochran way. And so for 41 years Johnnie has continued the fight, and for the 20 that I have been with him I have also, and together we have continued to ask, “What’s Going On,”insisting upon an answer.
So where does all the energy to do justice come from? You may have all heard the story about Johnnie simultaneously trying a wrongful death civil case during the day and a criminal murder trial at night, winning both. I was helping him try the civil case during the day. I remember being bone tired at the end of my trial day at 4:30 p.m. when Johnnie was hopping up out of his seat at counsel table telling me he would call me after he finished up in his criminal trial. Later, at midnight or 1 a.m., he would call telling me he had a great evening in trial asking me what was on tap for tomorrow morning. I would ask him, “where do you get the energy?” He would say, “I love justice, whether its proving my client is innocent or getting substantial compensation for my client, day or night, it’s all the same, it’s all justice.” He would say, “this is not my job, it’s my calling, it’s my passion.”
Johnnie’s joy and love for what he did was infectious, a sweet obsession, and anyone around him long enough caught it. If any of you don’t have it yet, I hope you catch it soon. What happens is that where ever you see injustice you feel the need to find a cure. And you find creative ways of providing the cure. If you approach this purely economically, you will miss opportunities to do good. But if you see a wrong and you use your creative abilities to correct that wrong, often the money to support you will follow. You can do good and do well at the same time. You can be ambitious and an idealist at the same time.
This will to justice carries over into trial. It animates you and gives you unthinkable energy to prepare and persist no matter what obstacles lie before you. When you prepare and persist magical things happen. It is not just something you do in your head. After all the mental preparation occurs something else must happen to make you effective. I call this condition surrender. When you know you have prepared, when you are confident in your ability, you let a higher power take you forward. Johnnie’s faith in a power greater than his individual self has carried him through all manner of adversity to victory and success.
What I am talking about is a place that exists inside all of us where that still small voice of wisdom lives. It is where our authentic voice lives. It doesn’t sound like Johnnie, it may not have a facility to rhyme “fit” with “acquit”. It sounds like you. It sounds like you when you are excited, when you are in love, when you are in awe, when you feel passion. Before you were an attorney, it was there. It also lives in every juror who ever sat on a case. It is where real communication begins and ends. It is where transmission of your client’s cause to the jurors occurs.
Johnnie would tell me that magical moments at trial occur regularly when you follow the three “P’s,” while adding, “but not too much.” What he was suggesting is that you must leave room for spontaneity and that creative inspiration that occurs in the moment. Johnnie would tell me that after all the preparation is done there is only one place to go and that is that place of silence within. He put it this way in his book, Journey to Justice:
“Silence doesn’t frighten me. A believer knows that silence is not an absence, but a presence — a cloud out of which, since time immemorial, God has spoken to those who will listen.”[4]
This place of silence is where courage is found. I would see it again in a courtroom with Johnnie during his last trial shortly before he became ill. It was 2003. Johnnie asked me to come from Hawaii, where I was now living, and try a case in New Orleans. It was a case involving a horrific injury suffered by our beautiful 5-year-old client, Shannon Schweitzer, when she fell out of a defectively designed New Orleans street car.
I recall the day before closing argument. Johnnie and I were having dinner and discussing the content of the closing argument. As usual, I prepared a list of points to make and we discussed the sequencing of arguments and how to end the rebuttal argument with a crescendo as Johnnie was always fond of doing. It was a relaxed and joyful evening with great New Orleans cuisine. We reminisced about some of our earlier courtroom battles and victories.
The next day Johnnie started his opening argument with his smooth church like delivery. Johnnie’s opening arguments are usually more intellectual and logical, hitting all the legal points necessary to prove our claims, laying out the road map of evidence leading to the inescapable conclusion that we should prevail, and describing the compensation that will make our client whole. The fire always comes in rebuttal after the defense attorney has overstepped the law and/or the evidence. The fire arrived on time but much of that rebuttal fades into memory eclipsed by Johnnie’s final words to the jury. After an impassioned speech he pauses. An impenetrable silence spreads throughout the courtroom. Johnnie looks at each of the jurors and then says in a loud voice, “Does anyone hear me?” “Does anyone hear me?” “Does anyone hear me.” He walks slowly back to counsel table falling into his chair from exhaustion. The hairs on the back of my neck, and I am sure everyone else’s in that courtroom, were at attention. The transmission of our client’s cause to the jury occurred in that moment. I could see it in the jurors’ faces. A few hours later the jury returned a verdict for $51 million.
Later, I would ask Johnnie, “what made you say those last words to the jury like that.” It wasn’t just the words. It was also the compeling, urgent, sincere way he said them. I said, “that wasn’t part of the script we had talked about last night.” He said, “Eric my boy, sometimes you have to let the spirit speak through you. For that, there is no preparation, only the courage to be in the moment and do what you are told.”
For 41 years Johnnie has been successful, because, among other things, he has had the courage to surrender to that wonderful power within him, which is also within each of you. When you let that wisdom and the power of inspiration permeate what you do as a lawyer, you are practicing law the Johnnie Cochran way. That is what I have learned over these 20 years.
In closing, I want to say this. I love Johnnie Cochran. He has shown me what it means to be a lawyer. He has shown me what those words of Luke mean, to those who much has been given, much is expected. He has helped heal that 15-year-old boy who saw police misconduct. He has empowered me and so many others to ask, “What’s Going On,” and compel an answer. He shows, by his life, that you make a living by what you get, but you make a life worth living by what you give. We are successful lawyers with a social conscious and a desire to make a positive difference, not only in the lives of our clients but in the world at large. We are healers calling on our inner wisdom, our intelect, our court rooms and our Constitution, to provide a remedy for our clients from injustice while making our country better one case at a time.
Never forget that there is no mountain of inequity high enough, there is no river of tears and despair wide enough, there is no valley of darkness and deception low enough, that will keep us from getting to justice. Repeatedly, over the years I have watched and been a part of Johnnie’s Journey to Justice. I have been honored and blessed to travel this road with him. And so today, on behalf of Johnnie, I welcome you all on that journey as well.”
[1]You can learn more about this instrument at the website run by my first teacher, Erica Azim, at https://mbiradev.org. In future articles I will have more to say about this instrument and its central role in my personal and professional life.
[2]https://mbiradev.org/product/bangidza-mbira-piece-intensive/
[3]Johnnie L. Cochran, Jr. with Tim Rutten, Journey to Justice, pg. 180.
[4]Johnnie L. Cochran, Jr. with Tim Rutten, Journey to Justice, pg. 337.
